A bouncer punches you in the face. Who do you sue?

Consider yourself fortunate if you’ve never asked that question. But someone has.

Of course you sue the bouncer. But you also sue his employer under a legal theory known as respondeat superior.

Respondeat superior allows you to hold an employer liable for an employee’s tort if the tort was committed within the scope of employment. You need to prove 2 things: 1) an employer/employee relationship; and 2) that the tort was committed within the scope of employment.

Employer/employee relationship

A person is either an employee or an independent contractor; the difference between the two is control. The more control someone has over a person, the more likely that person is an employee. Independent contractors are subject to less control. Generally speaking, your babysitter is an employee and your refrigerator repairman is an independent contractor. Control is the determinative factor.

Scope of employment

The employee’s conduct must be inherent to the job or typical of the employee’s duties. Obviously, punching someone in the face is not an inherent part of being a nurse or bus driver. But what about a bouncer who ‘roughs up’ a rowdy patron?

Just because an employee is not strictly following his duties does not mean that the employer can avoid liability. California law suggests that if an employee’s action is either incident to his duties or could reasonably be foreseen by the employer, then the employer could be liable under respondeat superior.

So if a bouncer punches you in the face, sue him, and then sue his employer under respondeat superior. And don’t forget that the employer can also be liable under other theories like negligent hiring.